For the purposes of this chapter, the following terms, phrases, words,
and abbreviations shall have the meanings given herein. When not inconsistent
with the context, words used in the present tense include the future tense;
words in the plural number include the singular number and words in the singular
number include the plural number; and the masculine gender includes the feminine
gender. The words "shall" and "will" are mandatory, and "may" is permissive.
Words not defined in this chapter shall have the same meaning as in Title
VI of the Communications Act of 1934, as amended, 47 USC § 521 et
seq., and, if not defined therein, their common and ordinary meaning. References
to governmental entities (whether persons or entities) refer to those entities
or their successors in authority. If specific provisions of law referred to
herein are renumbered, then the reference shall be read to refer to the renumbered
provision. References to laws, ordinances or regulations shall be interpreted
broadly to cover government actions, however nominated, and include laws,
ordinances and regulations now in force or hereinafter enacted or amended.
ACCESS, PEG ACCESS, or PEG USE
Refers to the availability of a cable system or open video system
for public, education or government use (including institutional network use)
by various agencies, institutions, organizations, groups, and individuals,
including the City of Cohoes and its designated access providers, to acquire,
create, and distribute programming not under a franchisee's editorial
control, including but not limited to:
A.
PUBLIC ACCESS or PUBLIC USEAccess where organizations, groups, or individual members of the general public, on a nondiscriminatory basis, are the primary or designated programmers or users having editorial control over their communications;
B.
EDUCATION ACCESS or EDUCATION USEAccess where accredited educational institutions are the primary or designated programmers or users having editorial control over their communications;
C.
GOVERNMENT ACCESS or GOVERNMENT USEAccess where government institutions or their designees are the primary or designated programmers or users having editorial control over their communications.
AFFILIATE
A person that (directly or indirectly) owns or controls, is owned
or controlled by, or is under common ownership or control with, another person.
APPLICATION
Any application, proposal, submission, or request filed pursuant
to the requirements of this chapter to a) obtain a new franchise; b) transfer
a franchise; c) extend a franchise; or otherwise modify a franchise. A proposal
includes an applicant's initial proposal, submission or request, as well
as any and all amendments or supplements to the proposal and relevant correspondence.
APPLICATION FEE
A charge to recover the City of Cohoes' actual costs of processing
applications hereunder.
BASIC SERVICE
Any service tier regularly provided to all subscribers which includes
the retransmission of local television broadcast signals.
CABLE ACT
The Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521
et seq., as amended by the Cable Television Consumer Protection and Competition
Act of 1992, as further amended by the Telecommunications Act of 1996, as
further amended from time to time.
CABLE SYSTEM
A facility, consisting of a set of closed transmission paths and
associated signal generation, reception, and control equipment that is designed
to provide cable service which includes video programming and which is provided
to multiple subscribers within a community, but such term does not include:
a) a facility that serves only to retransmit the television signals of one
or more television broadcast stations; b) a facility that serves subscribers
without using, or connecting to a facility that uses, any public right-of-way
within the City of Cohoes; c) a facility of a common carrier which is subject,
in whole or in part, to the provisions of Title II (Common Carriers) of the
Communications Act of 1934, as amended, except that such facility shall be
considered a cable system to the extent such facility is used in the transmission
of video programming directly to subscribers, unless the extent of such use
is solely to provide interactive on-demand services; d) any facilities of
any electric utility used solely for operating its electric utility systems;
or e) an OVS that is certified by the FCC. Any reference to a cable system
includes the cable system as a whole, or any part thereof, including all pedestals,
equipment cabinets, electronic equipment and devices appurtenant to the system.
CABLE SERVICE
A.
The one-way transmission to subscribers of video programming, or other
programming service; and
B.
Subscriber interaction, if any, which is required for the selection
or use of such video programming or other programming service.
CHANNEL
A portion of the electromagnetic frequency spectrum which is used
in a cable system or OVS and which is capable of delivering a television signal
whether in an analog or digital format. The definition does not restrict the
use of any channel to the transmission of analog television signals.
CITY
The City of Cohoes and all departments, divisions, and agencies thereof.
CONSTRUCTION, OPERATION or REPAIR (and similar formulations of that
term)
The named actions interpreted broadly, encompassing, among other
things, installation, extension, maintenance, replacement of components, relocation,
undergrounding, grading, site preparation, adjusting, testing, make-ready,
and excavation.
DOWNSTREAM CHANNEL
A channel designed and activated to carry a transmission from the
head end to other points on a cable communications system, including interconnections.
FACILITIES
Includes any physical element used in connection with, or designed
to be used in connection with, the provision of services, whether or not located
in the public rights-of-way, including, without limitation, pedestals, cabinets,
ducts and conduits (whether empty or occupied), transformers, equipment, drains,
handholds, lines, line extensions, service drops, manholes, poles, power supplies
and generators, splice boxes, surface location markers, vaults, tunnels, amplifiers,
power guards, nodes, cables, and fiber optics (whether active or dark).
FCC
The Federal Communications Commission.
FRANCHISE
Refers to an authorization granted by the City of Cohoes to the operator
of a cable communications system giving the operator the nonexclusive right
to occupy the space or use facilities upon, across, beneath, or over public
rights-of-way in the City of Cohoes to provide specified services within a
franchise area.
FRANCHISE AREA
The area of the City of Cohoes that a franchisee is authorized to
serve by the terms of its franchise or by operation of law.
FRANCHISEE or GRANTEE
Refers to a person holding a cable communications system franchise
granted by the City of Cohoes.
FRANCHISE FEE
A.
In consideration of the grant and exercise of a franchise to construct,
install, operate, or provide services using facilities in the public rights-of-way,
a grantee shall pay to the City of Cohoes a franchise fee expressed as a percentage
of gross revenues or some other measure. The franchise shall specify the fee
to be paid, and the gross revenues to be included in the fee calculation.
If a franchise granted pursuant to this chapter specifies a franchise fee
established as the result of limiting applicable law, the City of Cohoes shall
have the option to renegotiate the amount of the franchise fee upon a change
in applicable law. Nothing herein requires a person to pay amounts in excess
of any limits that may be established by state or federal law.
GROSS REVENUES
All cash, credits, property, or other consideration of any kind or
nature received directly or indirectly by a grantee or its affiliates from
any source whatsoever arising from, attributable to, or in any way derived
from a grantee's operation of a cable system within the franchise area.
Gross revenues include, but are not limited to, fees charged to subscribers
for basic service; fees charged to subscribers for any optional, premium,
per-channel, or per-program service; monthly fees charged to subscribers for
any tier of service other than basic service; installation, disconnection,
reconnection, and change-in-service fees; leased channel fees; fees, payments,
or other payment received as consideration from programmers for carriage of
programming on the cable system; converter rentals or sales; studio rental,
production equipment, and personnel fees; advertising revenues, including
a per-capita share of advertising revenues for advertising carried on more
than one cable system; revenues from home shopping channels; sales of programming
guides; and such other revenue sources as may now exist or hereafter develop.
The definition shall be interpreted in a manner which permits the City of
Cohoes to collect the maximum franchise fee permitted by law, irrespective
of the source of revenue. Gross revenues, however, shall not include any bad
debt (defined as unpaid subscriber or advertiser accounts), any taxes on services
furnished to a grantee and imposed directly upon any subscriber or user by
the state, City, or other governmental unit and collected by a grantee on
behalf of said governmental unit. The amount paid as a franchise fee shall
not be deducted from gross revenues unless required to be deducted under federal
law.
LICENSE
Refers to the legal authorization, terminable at will, to use a particular,
discrete, and limited portion of the public rights-of-way to construct, operate,
or repair a communications facility.
MAYOR
The Mayor of the City of Cohoes or the Mayor's designee.
OPERATOR
When used with reference to a system, refers to a person 1) who directly
or through one or more affiliates provides service over a cable communications
system and directly or through one or more affiliates owns a significant interest
in such facility; or 2) who otherwise controls or is responsible for, through
any arrangement, the management and operation of such a facility.
OVS
Open video system. A reference to an OVS includes pedestals, equipment
enclosures (such as equipment cabinets), amplifiers, power guards, nodes,
cables, fiber optics and other equipment necessary to operate the OVS or installed
in conjunction with the OVS.
PERSON
Includes any individual, corporation, partnership, association, joint-stock
company, trust, or any other legal entity, hut not the City of Cohoes.
PUBLIC PROPERTY
Any property that is owned or under the control of the City of Cohoes
that is not a public right-of-way, including for purposes of this chapter,
but not limited to, buildings, parks, poles, structures in the public rights-of-way
such as utility poles and light poles, or similar facilities or property owned
by or leased to the City of Cohoes.
PUBLIC RIGHTS-OF-WAY
The surface of and the space above and below any street, road, highway,
freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive, or right-of-way
or easement primarily dedicated to travel, now or hereafter existing within
the City of Cohoes, which may be properly used for the purpose of installing,
maintaining, and operating a cable communications system, and any other property
that a franchisee is entitled by state or federal law to use by virtue of
the grant of a franchise.
REVOCATION
The City of Cohoes' affirmative act of terminating a franchise.
SCHOOL
Any accredited primary school, secondary school, college, and university.
SUBSCRIBER
The City of Cohoes or any person who is lawfully receiving, for any
purpose or reason, any cable service via a cable communications system, whether
or not a fee is paid for such service.
TERMINATION
The conclusion of a franchise by any means, including but not limited
to by expiration of its term, abandonment, or revocation.
UNAFFILIATED VIDEO PROGRAMMING PROVIDER or UVPP
Any person who uses capacity on a franchised cable system to deliver
cable service or other communications service [as that term is used in 47
U.S.C. Section 542(h)] to subscribers and who is not an affiliate of the grantee.
UPSTREAM CHANNEL
A channel designed and activated to carry transmissions from a point
on the cable system, other than the head-end, to the head-end or another point
on the cable system.
USER
A person or the City of Cohoes utilizing a channel, capacity or equipment
and facilities for purposes of producing or transmitting material, as contrasted
with the receipt thereof in the capacity of a subscriber.
No person may construct or operate a cable communications system in
the City of Cohoes without first obtaining a City of Cohoes franchise therefor.
Consistent with the requirements of due process, a person's failure
to obtain a franchise as required by this chapter may, in the City's
discretion, result in:
A. Forfeiture, by operation of law, of the person's
facilities located in the public rights-of-way that are not authorized by
an existing franchise; and/or
B. A requirement that the facilities be removed and that
penalties and damages be paid. Failure to remove facilities upon the lawful
demand of the City shall be deemed a violation, punishable pursuant to § C3-14
of the City Charter. In the event of a continuing violation, each day shall
be deemed a separated violation. This shall be in addition to any civil remedies
at law or equity that are available to the City.
Grantees of franchises existing as of the effective date of this chapter
shall, in addition to all the obligations and duties prescribed by the terms
of their existing franchises, be subject to the substantive and procedural
requirements herein, except as prohibited by applicable law. Nothing herein
is intended to invalidate a lawful, existing franchise or to waive any obligations
imposed by such a franchise. Notwithstanding the foregoing, provisions of
this chapter that expressly refer to a "franchise granted pursuant to this
chapter" shall not apply to franchises initially granted prior to the effective
date of this chapter.
Any franchise shall be issued in the form of an ordinance and must be
accepted by the franchisee to become effective.
Any person seeking to obtain a franchise; transfer a franchise; extend
the term of an existing franchise; renew a franchise; or modify an existing
franchise to add new services that are required to be authorized by a franchise
pursuant to this chapter shall submit a signed original of its application
and six copies to the City Clerk. The Clerk shall make a proposal available
for public inspection. The application must conform to all of the requirements
of this chapter. Requests for other types of franchise modifications may be
processed by the City of Cohoes without an application, and submitted for
approval. However, nothing herein shall prevent the City of Cohoes from requiring
an application in the event the City of Cohoes determines, based on the nature
of the requested modification, that the public interest would best be served
by the submission of an application pursuant to this chapter.
Each franchisee shall maintain complete accurate maps and improvement
plans which show the location, size, and a general description of all facilities
installed in the public rights-of-way and any power supply sources (including
voltages and connections). Maps shall be based upon postconstruction inspection
to verify location. Each franchisee shall provide such maps to the City of
Cohoes showing the location of its facilities, in such detail and scale as
may be directed by the City of Cohoes' Engineer, and update the maps
at least annually and whenever the facility expands or is relocated. Copies
of maps shall be provided on disk, and in hard copy, in a commercially available
electronic format specified by the City of Cohoes' Engineer.
Unless the City of Cohoes' Mayor or his/her designee waives the
requirement, a franchisee shall at all times maintain:
A. Complaint records. Records of all complaints received,
their nature and resolution. The term "complaints" refers to complaints about
any aspect of the franchisee's operations.
B. Outage records. Records of outages known to the franchisee,
their cause and duration.
C. Complaint response. Records of service calls for repair
and maintenance indicating the date and time service was requested, the date
of acknowledgment and date and time service was scheduled (if it was scheduled),
and the date and time service was provided, and (if different) the date and
time the problem was solved;
D. Installation records. Records of installation/reconnection
and requests for service extension, indicating date of request, date of acknowledgment,
and the date and time service was extended.
E. Customer service. Records sufficient to show whether
the franchisee has complied with each customer service standard that applies
to it.
The City of Cohoes' Mayor or his/her designee may temporarily exempt any franchisee from its obligations under §§
130-14 through
130-17 if the Cable Administrator determines that the requirement would be unduly burdensome or unnecessary and that the City of Cohoes and subscriber interests may be adequately protected in some other manner. Notwithstanding the foregoing, any such exception of the franchisee from obligations under §§
130-14 through
130-17 shall not exempt the franchisee from complying with all relevant and applicable state requirements and rules.
A franchisee shall take all reasonable steps required so that it is
able to provide reports, books and records to the City of Cohoes, including
by providing appropriate subscriber privacy notices. Each franchisee shall
be responsible for redacting data that applicable law prevents it from providing
to the City of Cohoes. Nothing in this section shall be read to require a
franchisee to violate state or federal subscriber privacy laws.